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2026 DIGILAW 134 (GUJ)

Babubhai Rayajibhai Solanki v. State Of Gujarat

2026-03-02

D.N.RAY, SUNITA AGARWAL

body2026
JUDGMENT : SUNITA AGARWAL, J. 1. Heard Mr. Mitul K. Shelat, learned Senior Counsel assisted by Mr. Bhavin B. Thakar, learned Counsel for the petitioner and perused the record. 2. By means of the present petition, the petitioner herein seeks for the following reliefs :- “(A) The Hon'ble Court may be pleased to issue writ order or direction in the nature of writ of declaration declaring that Clause 17 of the Gujarat Essential Commodities (Licensing of Fair Price Shops) Order, 2025, as being ultra vires and thereupon be pleased to strike down the same; Or alternatively, read down Clause 17 as saving only acts done under the Gujarat Essential Commodities (Licensing to Fair Price Shop) Order, 2004, prior to 01.04.2016; (B) The Hon'ble Court may be pleased to Declare that the provisions of the Gujarat Essential Commodities (Licensing of Fair Price Shops) Order, 2025, shall be applicable prospectively only to any alleged violations/ contraventions committed on or after 29.07.2025; (C) The Hon'ble Court may be pleased to Quash the Order dated 29.01.2026 passed by Respondent No.4 in Number/PRV/VBHD/Remand case No 15/2025 (ANNEXURE-B) against the Petitioner. (E) Pending hearing and final disposal of the petition, the Hon'ble Court be pleased to stay Order dated 29.01.2026 passed by Respondent No. 4 in Number/PRV/VBHD/Remand Case No 15/2025 (ANNEXURE-B) and further be please to permit the Petitioner to continue to operate shop under his license no. 105/2012 on such terms and conditions as may be deemed fit and appropriate in the interest of justice. F) The Hon'ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon'ble Court in the interest of justice.” 3. The challenge to Clause 17 of the Order of 2025, which saves the previous action undertaken under the Gujarat Essential Commodities (Licensing to Fair Price Shops) Order, 2004 (the “ 2004 Order ”), is on the ground that Clause 17 of the Gujarat Essential Commodities (Licensing to Fair Price Shops) Order, 2025 (the “ 2025 Order ”) is contrary or is inconsistent with the Public Distribution Order dated 20.03.2015 framed by the Central Government, Ministry of Consumer Affairs, Food and Public Distribution, in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 and in supersession of the Public Distribution System (Control) Order, 2001 (the “ 2001 Order” ). 4. 4. Inviting the attention of the Court to Clause 1(2) of the Targeted Public Distribution System (Control) Order, 2015 (the “ 2015 Order ”) issued by the Central Government, it is submitted by the learned Senior Counsel that the provisions of the PDS Order, 2015 came into effect, in so far as the State of Gujarat is concerned, with the implementation of the Food Security Act in the State. The contention is that the 2004 Order which was issued under the 2001 Order issued by the Central Government, ceased to remain into operation. The submission thus is that the action taken against the petitioner under the said 2004 Order, by issuance of the show cause notice dated 06.01.2024 and the proceedings conducted under the 2004 Order were non est. 5. The further contention is that even the fresh proceedings initiated under the show cause notice dated 24.12.2025 after the remand of the matter to the competent authority, in view of the directions issued by this Court in the judgment and order dated 26.09.2025, will also be inconsistent with the 2015 Order and shall have to be declared illegal. In essence, it is sought to be argued by the learned Senior Counsel for the petitioner that no proceeding whatsoever can be undertaken against the petitioner either under the 2004 Order or under the 2025 Order. 6. Essentially, the argument of the learned Senior Counsel for the petitioner leads to a situation where if the relief as prayed by the petitioner is granted, it will result in a vacuum for a period of about 10 years in the matter of regulation of maintaining supply and distribution of Essential Commodities, for the period from the date of the 2015 Order issued by the Central Government, i.e. dated 20.03.2015 till the Notification dated 25.07.2025 issued by the State Government. 7. The submission of the learned Senior Counsel for the petitioner is that the Clause 17 of the 2025 Order which saves action taken under the 2004 Order prior to 01.04.2016 shall have to be declared ultra vires and be struck down, or; alternatively the Court may read down the said Clause, accordingly. 8. 7. The submission of the learned Senior Counsel for the petitioner is that the Clause 17 of the 2025 Order which saves action taken under the 2004 Order prior to 01.04.2016 shall have to be declared ultra vires and be struck down, or; alternatively the Court may read down the said Clause, accordingly. 8. At the outset, we may note that the submissions made by the learned Senior Counsel appearing for the petitioner cannot be accepted for two reasons :- A. Firstly, (i) that the 2004 Order was noti exercise of the powers conferred by Section 3 of the Gujarat Essential Commodities Act, 1955 (“ the Act, 1955 ”) read with Clause 10 & 11 and paragraph No. ‘5’ of the Annexure to the Order of the Government of India, Department of Food and Public Distribution vide Notification dated 31.08.2001. With the promulgation of the 2004 Order as per the 2001 Order of the Central Government, the same shall remain in operation, as extended to the whole of the State of Gujarat, with effect from the date of publication in the official gazette. (ii) In so far as the 2015 Order issued by the Central Government under Section 3 of the Act, 1955, pursuant to which the 2025 Order has been notified by the State of Gujarat, suffice it to say that there is no automatic adoption or application of the 2015 Order issued by the Central Government, in view of the Clause 9 of the Public Distribution Order dated 20.03.2015 issued by the Central Government, Ministry of Consumer Affairs, Food and Public Distribution, which reads as under :- “9. Licensing and regulation of fair price shops. (1) The State Government shall issue an order under section 3 of the Act, but not inconsistent with this Order, for regulating the sale and distribution of the essential commodities. (2) The licences to the fair price shop owners shall be issued under the said order and the order issued by the State Government shall be notified and displayed on web portal. (3) The designated authority appointed by the State Government shall Issue the licences to the fair price shop owners. (4) The Stale Government shall accord preference to public Institutions or public bodies such as panchayats, self help groups, cooperative societies in licensing of fair price shops and management of fair price shops by women or their collectives. (3) The designated authority appointed by the State Government shall Issue the licences to the fair price shop owners. (4) The Stale Government shall accord preference to public Institutions or public bodies such as panchayats, self help groups, cooperative societies in licensing of fair price shops and management of fair price shops by women or their collectives. (5) The licences to the fair price shop owners shall be issued keeping in view the viability of the fair price shop. (6) The State Government shall ensure that the number of ration card holders attached to a fair price shop are reasonable, the fair price shop is so located that the consumer or ration card holder does not have to face difficulty to reach the fair price shop and that proper coverage is ensured in hilly, desert, tribal and such other areas difficult to access. (7) The State Government shall fix an amount as the fair price shop owner's margin, which shall be periodically reviewed for ensuring sustained viability of the fair price shop operations.. (8) The State Government shall put in place a mechanism to ensure the release of fair price shop owner's margin without any delay. (9) The State Government shall allow sale of commodities other than the foodgrains distributed under the Targeted-Public Distribution System at the fair price shop to Improve the viability of the fair price shop operations.” (iii) The learned Senior Counsel for the petitioner based his submissions on Clause 1(2) of the Public Distribution Order of the Central Government dated 20.03.2015, which reads as under :- “2) It shall come into force on the date of its publication in the Official Gazette: Provided that provisions of the Public Distribution System (Control) Order, 2001 shall continue to have effect as against the corresponding provisions of this Order in any State which has not implemented the Food Security Act or is implementing the said Act only in part.” (iv) It is submitted that with the implementation of the Food Security Act in the State of Gujarat in the year 2016, the 2004 Order notified by the State of Gujarat for maintaining supplies, securing availability and distribution of the essential commodities under the Public Distribution System in the whole of the State of Gujarat, shall seized to be in operation. (v) The effect of these submissions would be that there remained no Public Distribution Order in the entire State of Gujarat for regulating the supplies and distribution of the essential commodities under the Public Distribution Order and there would be a vacuum for a period of approximately 10 months i.e. with effect from implementation of the Food Security Act and till the date of the Notification of the 2025 Order published in the official gazette on 29.07.2025. This submissions cannot be accepted, being misconceived. (vi) The facts remains that till the Notification of the 2025 Order by the State of Gujarat published in the official gazette on 29.07.2025, the 2004 Order notified by the State of Gujarat remained effective and operated. Any vacuum in the field of regulation for maintaining supplies, securing availability and distribution of the essential commodities under Public Distribution System will lead to absurdity. The action done under the 2004 Order cannot be undone. B. Secondly, (i) the proceedings conducted under 2004 Order against the petitioner had been brought to its logical end with the Order dated 31.01.2024 of cancellation of the license, pursuant to the show cause notice dated 06.01.2024. Even the statutory appeal filed by the petitioner had been dismissed vide order dated 06.10.2024, both the aforesaid orders were subjected to challenge in Special Civil Application No. 15629 of 2024 by the petitioner herein. Pertinent is to note that while challenging the said action of the competent authority initiated in the year 2024 which was under the 2004 Order in the State of Gujarat, no such issue was pressed by the petitioner with regard to the automatic repeal or rescinding of the 2004 order or applicability thereof because of implementation of the Food Security Act in the year 2016. (ii) The writ petition filed by the petitioner challenging the orders of 2024 came to be disposed of vide judgment and order dated 26.09.2025 passed by the learned Single Judge in the following manner:- “[1] The present petition challenges the cancellation and/or suspension of the petitioner’s fair price shop license, which was originally issued and governed under the Control Order, 2004. The grievance of the petitioner is that, after the Central Government amended the Control Order in 2015, the State Government has not made corresponding amendments to the State Control Order. The grievance of the petitioner is that, after the Central Government amended the Control Order in 2015, the State Government has not made corresponding amendments to the State Control Order. Therefore, any action taken under the old Control Order of 2004 is alleged to be without jurisdiction. [2] Learned Assistant Government Pleader, on the basis of written instructions dated 19th September 2025 (which are taken on record), submitted that the ends of justice would be served if the matter is remanded to the competent authority for fresh consideration in accordance with the provisions of the New Control Order, 2025. [3] In view of the above submission and without entering into the merits of the matter, the petition is disposed of by quashing and setting aside the impugned order and/or show cause notice. The matter is remanded to the concerned authority for fresh adjudication in accordance with the New Control Order, 2025. It is hereby clarified that all the contentions are kept open to be raised before the authority. [4] It is clarified that if any interim relief was earlier granted and is presently in operation, permitting the petitioner to run the fair price shop, such arrangement shall continue till the final decision is taken by the authority in the remanded proceedings. The authority is directed to decide the matter at the earliest, keeping in view that it concerns the distribution of essential commodities in the respective area. The fair price shop holder(s) / licensee(s) shall cooperate in the proceedings and shall not seek unnecessary adjournments. The entire exercise shall be completed within an outer limit of six months from the date of receipt of the writ of this order. Direct service is permitted.” (iii) A bare reading of the aforesaid decision indicates that before the writ Court (learned Single Judge), the case of the petitioner was that the Central Government amended the 2001 Order, pursuant to which the 2004 Order was notified by the State Government. However, the State Government did not make corresponding amendments to the State Control Order and, therefore, any action taken under the said Control Order will be wholly without jurisdiction. However, the State Government did not make corresponding amendments to the State Control Order and, therefore, any action taken under the said Control Order will be wholly without jurisdiction. (iv) On the said stand of the petitioner, the learned Assistant Government Pleader came out with the submission that as per the written instructions received by him, a new Control Order of 2025 came into effect and, in case, the matter was remanded to the competent authority, fresh consideration would be made in accordance with the provisions of the New Control Order of 2025. (v) In view of the said submission, the learned Single Judge while disposing of the writ petition filed by the petitioner, quashed and set aside the show cause notice dated 06.10.2024 and the impugned order passed pursuant thereto under the 2004 Order. The matter was remanded back to the competent authority for fresh adjudication in accordance with the New Control Order of 2025. The result is that fresh proceedings against the petitioner were conducted in accordance with the 2025 Order and the show cause notice dated 24.12.2025 was issued. Pursuant thereto, the order dated 29.01.2026 has been passed by the competent authority namely the respondent No.4 herein canceling the license of the petitioner. (vi) Taking note of the directions contained in the order dated 26.09.2025 passed by the learned Single Judge, we cannot accept the contention of the learned Senior Counsel that fresh adjudication cannot be made in accordance with the 2025 Order. The submissions made by the learned Senior Counsel for the petitioner that the liberty granted to the petitioner to raise all contentions before the competent authority can be used to challenge even the applicability of 2025 order is liable to be rejected as misconceived. 9. With the above, we are of the considered opinion that there cannot be a vacuum in the matter of regulation of maintaining supplies and distribution of the essential commodities in the State of Gujarat and till the 2025 Order came into effect with the notification published in the official gazette on 29.07.2025, the 2004 Order remained in operation and it is for this reason that in the 2025 Order, Clause 17 has been incorporated to save the orders passed, action taken, right, privilege, obligation, or liability acquired, accrued, or incurred under the 2004 Order. Clause 17 of the 2025 Order which saves all investigation, legal proceedings, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment etc, is with a view to bridge the alleged gap of approximately 10 years during which the State of Gujarat had not came out with the fresh notification in accordance with the 2015 Order of the Central Government. 10. Even otherwise, the petitioner cannot be permitted to approbate and reprobate. Once accepted before the learned Single Judge that fresh adjudication can be made in accordance with the 2025 order, whereunder the proceedings had been undertaken against the petitioner, the petitioner cannot be permitted to say that the 2025 Order will not be applicable, inasmuch as, the inspection of the shop of the petitioner was conducted in the year 2022, prior to the notification of 2025 Order in the official gazette on 29.07.2025. 11. In view of the above, prayers ‘10A’ and ‘10B’ in the writ petition challenging the validity of the essential Clause 17 of the 2025 Order are found to be misconceived and hence, rejected. 12. For the remaining prayers made in the present petition, suffice it to note that after remand of the matter, the petitioner has approached this Court straightaway challenging the order dated 28.01.2026 passed by the District Supply Officer, namely the respondent No.4 herein, though an efficacious remedy of filing Appeal under Clause 12 of the 2025 Order is available to the petitioner. A perusal of Clause 12 of the 2025 Order indicates that it provides remedy of filing appeal against the order of revocation of license by the competent authority on an application filed by the aggrieved person within a period of 30 days from the date of receipt of such order. 13. We are of the considered opinion that in view of the availability of an efficacious remedy of appeal before the Appellate Authority under the 2025 Order, which would be empowered to enter into all the factual and legal issues, if arise, if any, the writ petition cannot be entertained. The remedy available with the petitioner being efficacious is required to be availed to challenge the order dated 29.01.2026 passed by the District Supply Officer namely the respondent No. 4 herein. The remedy available with the petitioner being efficacious is required to be availed to challenge the order dated 29.01.2026 passed by the District Supply Officer namely the respondent No. 4 herein. However, looking to the time period spent in the present proceedings, we simply provide that, in case, the petitioner files appeal against the order 29.01.2026 passed by the respondent No. 4, within a period of three weeks from today along with the copy of this order, the appeal shall be entertained by the competent authority without raising any objection as to the limitation in filing thereof and shall be decided on merits, without being influenced by any of the observations made in this order.